Appellant, Tyrirk Harris, appeals from the judgment of sentence entered on April 26, 2013, following his jury trial convictions for third-degree murder and possession of an instrument of crime (PIC).[1] We affirm.

The facts of this case, as aptly summarized by the trial court, are as follows:

On February 14, 2012, at approximately 4:08 p.m., Frank Santana, the decedent, approached [Appellant's] home on the 6500 block of Torresdale Avenue in Northeast Philadelphia. Francis Fogarty, a neighbor who had lived on the block for several years, saw the conversation that ensued. She heard the decedent ask [Appellant] to deal with the mess made by his dog on the decedent's lawn, and also say "if I have to come back, there's going to be a problem." [Appellant] responded by asking the decedent if that was a threat, and then by drawing a gun and shooting the decedent in the face. The decedent fell over a railing between [Appellant's] porch and the porch next door. [Appellant] proceeded to shoot the now-prone decedent several more times.

Fogarty's boyfriend, Damon Smith, testified similarly, saying that he was walking down Torresdale Avenue with Fogarty when he saw the decedent and [Appellant] "having words" and then saw [Appellant] shoot the decedent in the face. Smith then dove to the ground, and heard a succession of gunshots.

According to [] Dr. Marlon Osbourne, an Assistant Medical Examiner in Philadelphia, the decedent had suffered seven gunshot wounds, including a penetrating gunshot wound to the lower face with stipple, indicating that the gun was within two and one-half feet at the time the shot was fired. The shot to the face also severed the spinal cord in [Appellant's] neck and would have had the immediate and inevitable effect of paralyzing him, causing him to fall and to lose most bodily functionality, including breathing.

The decedent also suffered a perforating shot to the neck that severed his carotid artery, another perforating neck wound, a perforating wound to the back of his right shoulder, a penetrating wound to the left shoulder, a penetrating wound to his left flank that damaged the spleen, the pancreas and the liver, and a graze wound to his chest. Only the shot to the decedent's face had any stippling, and the testimony of the eyewitnesses establish it as the first gunshot.

[Appellant] called the police to the scene, and then told police when they arrived that he had shot the decedent. Officer Steven Hancock took [Appellant's] handgun from him at that time. That Smith and Wesson nine-millimeter handgun matched all of the fired cartridge casings recovered in this matter. The Commonwealth submitted a certificate of nonlicensure, establishing that [Appellant] was not licensed to carry the handgun.

In his statement to homicide detectives, [Appellant] claimed that the decedent had grabbed [Appellant's] gun halfway from the holster and that [Appellant] then shot him, believing his life to be in danger. He repeated this story at trial.

[Appellant's] cousin, Clifton Williams, also testified that the decedent had grabbed at [Appellant's] waist in an attempt to seize his gun before the shooting. However, in his statement to police after the shooting, Williams did not mention that the decedent tried to seize the gun. At that time, he simply said that he heard them argue about the dog having befouled the decedent's lawn, and then he saw the decedent gesture with his hands as he spoke, and then [Appellant] shot him. He also said in his statement that he asked [Appellant] why he shot the decedent, and [Appellant] said that the decedent was going to beat him up. Williams said he did not hear the decedent say that he was going to beat [Appellant] up.

After the defense presented character testimony from several witnesses, the Commonwealth submitted rebuttal testimony from Officer Brian Gordon. Upon being asked whether [Appellant's] reputation for being peaceful and law-abiding is good, bad, or beyond his knowledge, the officer began by saying "I locked [Appellant] up for …". The [trial court] immediately halted the improper testimony, and gave a curative instruction. The [trial court] instructed the jury not to consider the stricken testimony, and further instructed them that the charges in that matter were withdrawn, and that [Appellant] [was] entitled to the presumption of innocence.

During closing arguments, defense counsel objected when the Commonwealth said[,] "There is not one shred of accountability and responsibility from you, [Appellant]. Not one." Later, the defense made a mistrial motion based on that comment, characterizing it as shifting the burden of proof. The [trial court] denied the motion, but agreed to give an instruction that emphasized that the defense does not bear the burden of proof, and went on to elaborate just such an instruction when charging the jury.

Trial Court Opinion, 6/28/2013, at 2-4 (record citations omitted).

Police arrested Appellant and the Commonwealth charged Appellant with murder, possession of a firearm without a license, carrying a firearm in public in Philadelphia, and PIC. On February 1, 2013, the jury found Appellant guilty of third-degree murder and PIC, and not guilty regarding the other firearm offenses. On April 26, 2013, the trial court sentenced Appellant to an aggregate term of 20 to 40 years of imprisonment. On May 3, 2013, Appellant filed a timely post-sentence motion arguing the verdict was against the weight of the evidence and that the trial court abused its discretion in imposing sentence. The trial court denied relief by order dated May 7, 2013. This timely appeal resulted.[2]

On appeal, Appellant presents three issues for our review:

I Did the [trial c]ourt err in denying [Appellant's] request for a mistrial when the prosecutor improperly elicited testimony regarding [Appellant's] previous arrest?

II. Did the [trial c]ourt err in denying [Appellant's] request for a mistrial when the prosecutor committed prosecutorial misconduct during closing arguments by stating [Appellant] had not shown, "one shred of accountability and responsibility" for the incident in question?

III. Did the [trial c]ourt err in denying [Appellant's] post-sentence motion for arrest of judgment and/or a new trial on the ground that the verdict was against the weight of the evidence since the testimony of all Commonwealth witnesses was inconsistent with the physical evidence at the crime scene and subsequent forensic analysis of that evidence?

Appellant's Brief at 3.

Appellant's first two issues assert trial court error in denying a mistrial. Our standard of review following the denial of a mistrial is as follows:

The trial court is in the best position to assess the effect of an allegedly prejudicial statement on the jury, and as such, the grant or denial of a mistrial will not be overturned absent an abuse of discretion. A mistrial may be granted only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict. Likewise, a mistrial is not necessary where cautionary instructions are adequate to overcome any possible prejudice.

In his first issue, Appellant argues he was entitled to a new trial when the Commonwealth improperly elicited testimony from Officer Brian Gordon regarding a prior arrest of Appellant. Appellant's Brief at 12-13. He claims that: (1) Officer Gordon's testimony "blatantly disregarded the court admonition to limit his testimony to an opinion as to whether [Appellant's] reputation was, 'good, bad, or you don't know[;]'" and (2) the Commonwealth was able to undercut Appellant's character testimony by referencing a specific incidence of bad conduct. Id. Thus, Appellant argues the curative instruction given by the trial court was insufficient and obvious prejudice resulted. Id. at 13.

"The often-stated rule in Pennsylvania governing evidence of other crimes is that such evidence is not admissible solely to show a defendant's bad character or propensity for continuing criminal acts." Commonwealth v. Ragan, 645 A.2d 811, 819 (Pa. 1994) (citation omitted). "However, not all references which may indicate prior criminal acts warrant reversal." Id. (citation omitted). "Mere passing references to prior criminal activity will not require reversal unless the record illustrates definitively that prejudice resulted from the reference." Id. (citation and internal quotations omitted). "An immediate curative instruction to the jury may alleviate any harm to the defendant that results from reference to prior criminal conduct." Commonwealth v. Morris, 519 A.2d 374, 377 (Pa. 1986).

The testimony of Officer Gordon in the instant case was an unexpected response to a proper question, and hence, the Commonwealth did not act in bad faith nor intentionally elicit the response when the comment was made. As part of its rebuttal case, the Commonwealth called Officer Gordon and asked him to state whether Appellant's reputation for being peaceful and law abiding as good, bad, or beyond the officer's knowledge. Phrased as such, the question asked for permissible testimony regarding Appellant's general reputation and in a manner to avoid improper references to specific instances of criminal conduct. Officer Gordon stated that he "locked [Appellant] up for-[,]" but was interrupted and did not state the reason for the arrest or make reference to a specific crime charged. N.T., 1/31/2013, at 83. The trial court immediately directed the jury to disregard the comment and struck it from the record. Moreover, the trial court told the jury that the charges briefly alluded to had been withdrawn. Id. at 88-89. Further, the trial court gave a curative instruction. Id. Finally, as discussed infra, there was overwhelming evidence of Appellant's guilt as established by several eyewitnesses to the shooting and physical evidence presented at trial. Thus, the record does not definitively illustrate that prejudice resulted from the passing reference to unspecified prior criminal conduct. As such, we simply do not find Appellant was deprived of a fair trial by the isolated reference to prior criminal conduct inadvertently elicited from Officer Gordon. Accordingly, the trial court did not abuse its discretion in denying Appellant's request for a mistrial. Appellant's first issue merits no relief.

In his second issue presented, Appellant claims he was entitled to a mistrial because the Commonwealth engaged in prosecutorial misconduct during its closing argument when it stated Appellant had not shown "one shred of accountability and responsibility" for the incident in question. Appellant's Brief at 13-14. More precisely, Appellant argues the trial court's subsequent jury instruction "merely instructed the jury that [Appellant] had no burden of proving his guilt or presenting evidence" but did not address the remark specifically and, hence, was "insufficient to remedy the obvious prejudice" to Appellant. Id. at 14.

It is well established that a prosecutor "may comment on the credibility of the defendant or other witnesses, [but] it is improper for a prosecutor to express a personal belief as to their credibility." Commonwealth v. Chmiel, 889 A.2d 501, 545 (Pa. 2005). A prosecutor is permitted to "vigorously argue his case so long as his comments are supported by the evidence or constitute legitimate inferences arising from that evidence." Commonwealth v. Luster, 71 A.3d 1029, 1048 (Pa. Super. 2013) (citations omitted). Moreover,

[i]n considering a claim of prosecutorial misconduct, our inquiry is centered on whether the defendant was deprived of a fair trial, not deprived of a perfect one. Thus, a prosecutor's remarks do not constitute reversible error unless their unavoidable effect ... [was] to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Further, the allegedly improper remarks must be viewed in the context of the closing argument as a whole.

Id. (citations omitted). Furthermore,

[i]n determining whether the prosecutor engaged in misconduct, courts must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel's conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing. A remark by a prosecutor, otherwise improper, may be appropriate if it is in [fair] response to the argument and comment of defense counsel. Moreover, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.

Upon review of the certified record, we agree with the trial court that the Commonwealth made the aforementioned statement based upon proper inferences based on the evidence presented at trial and, otherwise, in fair response to the argument of the defense. In closing, defense counsel: (1) argued that two eyewitnesses to the event lacked credibility, calling them "a drug dealer and convicted thief twice over[;]" (2) claimed that the victim was intoxicated and instigated the incident; and (3) averred that police performed an inadequate investigation and failed to interview additional witnesses. N.T., 1/31/2013, at 153-165, 167-170, and 165-166. Counsel for Appellant asserted the jury should be "offended" by the police investigation. Id. at 167.

In response, the Commonwealth made the comments at issue:

Counsel spoke to you about what should offend you. He says you should be offended. Ladies and gentlemen of the jury, I agree []. You should be offended. You should be offended that [Appellant] killed someone in the manner in which he did for the reasons in which he did. You should be offended because the only thing we have heard is that, let's blame witnesses. Let's blame the cops. Let's blame the victim. There has been not one shred of accountability and responsibility from you, [Appellant]. Not one.

Id. 179.

In sum, in his closing, Appellant cast aspersions on many of the Commonwealth witnesses involved in this case. The Commonwealth made an isolated retort in response and it was not the prosecutor's personal belief regarding Appellant's credibility. When reviewing the comment in context, it was not made to prejudice the jury, forming in their minds fixed bias and hostility toward Appellant so that they could not weigh the evidence objectively and render a true verdict. The comments were made based upon the evidence presented and in fair response to Appellant's closing argument.

Moreover, the trial court issued cautionary jury instructions regarding the presumption of innocence and that the Commonwealth had the burden to prove Appellant's guilt beyond a reasonable doubt, before the comments at issue were made and again in the court's charge to the jury. Id. at 89; N.T., 2/1/2013, at 5-7. We presume that the jury follows the court's instructions. Commonwealth v. Jordan, 65 A.3d 318, 334 (Pa. 2013). Based on all of the foregoing, we discern no abuse of discretion in the trial court's denial of a mistrial based on prosecutorial misconduct. Hence, Appellant's second issue fails.

In his third issue presented, Appellant argues that the verdict was against the weight of the evidence. Appellant's Brief at 14-16. He claims that the forensic evidence and eyewitness testimony was inherently inconsistent, necessitating an arrest of judgment. Id. In particular, he claims that the eyewitnesses testified that "[Appellant] stood over the prostrate victim and shot him multiple times as he lay on the concrete porch," but the ballistic evidence did not support such testimony because police "detected no strike marks on the porch at the time the crime scene was processed." Id. at 15.

Our Supreme Court recently reiterated the applicable law related to weight of the evidence claims, as follows:

A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. It has often been stated that a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.

An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:

Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice. This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, [our Supreme Court has] explained:

The term discretion imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.

In the instant case, the trial court determined that the jury verdict did not shock its conscience. It determined that the eyewitness testimony "was rightly credited by the jury" because "[t]hey had no motive to lie or dissemble" and any inconsistencies in their testimony was explained because "[t]hey dove to the ground once the first shot was fired[.]" Trial Court Opinion, 6/28/2013, at 8. The trial court noted that the physical evidence that "the decedent had suffered seven gunshot wounds, including a penetrating gunshot wound to the lower face[], indicat[ed] that the gun was within two and one-half feet at the time the [first] shot was fired." Id. at 2. The trial court noted that the additional physical evidence regarding the remaining gunshot wounds was "consistent with the decedent having been shot multiple times as he was still crumpling from the initial wound." Id. at 9. The trial court concluded, "the Commonwealth's evidence amply and firmly establishes that [Appellant] escalated a verbal conflict into a physical one by shooting the decedent in the face." Id.

We discern no abuse of discretion in denying Appellant's weight of the evidence claim. In essence, Appellant asks this Court to re-assess the credibility of the witnesses' testimony and we may not. Regardless, the trial court determined that the ballistic evidence was consistent with the witnesses' testimony as presented at trial. Upon review, we agree. Thus, in denying Appellant's weight of the evidence claim, we recognize no prejudice, personal motivation, caprice, or arbitrary action by the trial court. Accordingly, Appellant's final claim fails.

Judgment of sentence affirmed. Judgment Entered.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.